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Tomato Growers Seeing Red

By Cindy Skrzycki
Tuesday, August 5, 2008

While throwing a few rotten tomatoes at U.S. regulators might help ease growers' pain, those involved in the latest salmonella epidemic would prefer cash for their trouble.

After weeks of implicating domestic tomatoes in an outbreak of Salmonella saintpaul, federal food-safety sleuths shifted the spotlight to jalapeño and serrano peppers grown in Mexico.

But before the U.S. Food and Drug Administration lifted the tomato advisory July 17, U.S. tomato growers were left holding the shopping bag.

Growers said they lost $100 million in sales during the investigation, which they charge was conducted poorly and without enough consultation with them.

The growers knew the agency hadn't gotten to the source of the problem after the FDA told people to stop eating tomatoes and the illnesses increased, said Robert Guenther, senior vice president for public policy for United Fresh Produce Association, an industry group in Washington.

Things got even more problematic for investigators when tests didn't turn up a single domestic tomato with the bacteria.

The late reprieve for the industry shows how difficult it is to conduct international investigations of food-borne illnesses with limited resources and imperfect ways to trace a product back to its source.

At the same time, pressure has intensified to solve cases quickly and to pay for "mistakes" made.

Holding a tomato in one hand and a jalapeño in the other, Rep. Bart Stupak (D-Mich.), chairman of the Energy and Commerce Committee's oversight and investigations subcommittee, pressed the FDA on whether the tomato was still a "vegetable of interest" or had been cleared.

David W.K. Acheson, the FDA's associate commissioner for food, responded at a July 31 hearing that no mistakes had been made and that tomatoes on the market were safe to eat.

The FDA said it followed the leads provided by the Centers for Disease Control and Prevention. It found in early interviews with sick people that, overwhelmingly, they had eaten raw tomatoes in salsa or Mexican-style restaurant food.

The Salmonella saintpaul case began in May when federal and state investigators identified cases of the infection, which can cause serious illness and death, in New Mexico and Texas.

As the weeks passed, tomato growers became increasingly critical of the investigation.

It's not feasible for growers to legally challenge the government for their losses -- and the investigation isn't yet over -- but they hope Congress will help.

Rep. Tim Mahoney (D-Fla.) is sympathetic to the $1.3 billion tomato industry, as are other members of the state's delegation. He introduced a bill July 24 that would compensate growers and packers for losses up to $100 million. (Florida growers supply about half the nation's fresh tomatoes annually.)

"There should be some compensation," Mahoney said. "They have done nothing. They shouldn't be held accountable. You have indicted an entire industry and left doubt that it's okay to eat tomatoes.''

Bill Marler, a food-safety plaintiff attorney with Marler Clark in Seattle, said the push to exonerate tomatoes may be premature.

"Everyone empathizes," Marler said of the industry's losses. He cautioned that imperfect information may have implicated tomatoes, but "we would ask for their heads on a platter if it was tomatoes.''

There are other policy questions about penalizing agencies for their conclusions in the course of an investigation.

"You can't have public health people fearing liability," said Michael Taylor, a research professor at George Washington University's School of Public Health.

Taylor, who was a top food-safety official in the Clinton administration, suggested preventative measures and more efficient investigations.

''The government should mandate a set time period to provide answers to questions of where the produce came from," he said.

Tomato growers think they have a case for compensation from Congress since they don't qualify for other aid programs.

For example, the U.S. Department of Agriculture runs crop-insurance programs that cover disasters from floods and hurricanes, but not crops ensnared in recalls.

Some companies have recall insurance, but they're not likely to collect unless there is a recall -- not a warning or an advisory.

This isn't the first time produce growers looked to Congress for help with a food-safety issue.

Even though the 2006 bagged spinach recall involving Dole Food and Natural Selection Foods was more contained, growers took a $100 million hit, according to the United Fresh Produce Association.

Spinach growers got a financial-aid provision part way through Congress but didn't succeed.

In March 1989, the U.S. banned the entry of seedless grapes from Chile after two grapes were found to have been contaminated with cyanide, leaving Chilean growers, exporters and importers with millions of dollars in losses. The industry tried to recover about $210 million only to get word four years later that a federal judge ruled that the FDA wasn't responsible because it was doing its job.

"We got no compensation," said Richard Eastes, a California fruit and vegetable consultant who worked for a company affected by the ban. "It was just a bad dream."

Skrzycki is a regulatory columnist with Bloomberg News. She can be reached atcskrzycki@bloomberg.net.

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